For several years Marc and I have had occasional discussions about whether the conflicts in religious liberty—and perhaps in many other areas of constitutional law or public policy—are best perceived through the lens of a “tragic vision.” Marc’s excellent book argues that judges should have a sense of tragedy in that they recognize that state-religion disputes involve incommensurable values all of some worth, meaning that decisions in many cases unavoidably require the sacrifice of some goods. Continuing the analogy to dramatic genres, he contrasts the tragic sense with the comic sense, in which there is one metric of good by which outcomes and resolutions can be judged (and in a comedy things come out harmoniously in the end). Marc reacts, rightly I think, against the tendency of many church-state analysis to make tough questions seem simple, which inevitably involves giving short shrift to valid interests and claims on the other side.

Let me suggest, as I have to Marc over the years, that the sense of irony is as important as, or maybe more important than, the sense of tragedy. I don’t mean “irony” in the current sense of smirk, snark, detachment, or hipness. I loved David Letterman from the beginning, but this is more serious business. I mean it in the sense developed by Reinhold Niebuhr in The Irony of American History (1952), in which he argued that America, although in the moral right overall in fighting against Communism, would fall (indeed, had already fallen) into some of the same vices at its foes, because it did not practice humility and self-examination. Niebuhr described the biblical vision in which human “pretensions [to goodness] are the source of the ironic contrasts of strength leading to weakness, of wisdom issuing in foolishness,” and “virtue turning into vice”:

The Pharisee is condemned and the publican preferred because the former “thanks God” that he is “not like other men.” He seeks desperately but futilely to cover common human frailties by a meticulous legalism. Israel is undoubtedly a “good” nation as compared with the great nations surrounding it, but the pretensions of virtue are as offensive to God as the pretensions of power…. The fanaticism of the priests [who crucify Christ] is the fanaticism of all good men, who do not know that they are not as good as they esteem themselves. (IAH, 157-60)

In IAH and his earlier sermon collection Beyond Tragedy, Niebuhr distinguishes the Christian outlook from tragic outlooks on the ground that it “does not regard the inevitably of guilt in all human creativity as inherent in the nature of human life”: evil accompanies creativity but is not part of it, and instead stems from “man’s self-centeredness and egotism by which he destroys the harmony of existence” (BT, 166). In IAH, Niebuhr says, for the same reason, that “a purely tragic view of life is not finally viable”:

There are, of course, tragic moments and tragic choices in life. There are situations in which a choice must be made between equally valid loyalties and one value must be sacrificed for another [e.g., t]he contest between Antigone and Creon…. All rational resolutions of such tragic dilemmas which pretend that a higher loyalty is necessarily inclusive of a lower one, or that a prudent compromise between competing values can always be found, are false…. [Nevertheless, the] tragic motif is … subordinated to the ironic one because evil and destructiveness are not regarded as the inevitable consequence of the exercise of human creativity. There is always the ideal possibility that man will break and transcend the simple harmonies and necessities of nature, and yet not be destructive…. [T]he great evils of history are caused by human pretensions which are not inherent in the gift of freedom. They are a corruption of that gift. These pretensions are the source of the ironic contrasts of strength leading to weakness, of wisdom issuing in foolishness. (IAH, 157-58)

Because injustice and destructiveness are corruptions, not inherent in human creative action, it is possible—not easily, not always, but possible—to address them. “If [man] can realise that fact, if he can weep for himself, if he can repent, he can also be saved … by hope and faith…. In the self-accusation lies the beginning of hope and salvation…. If we can only weep for ourselves as men, we need not weep for ourselves as man” (BT, 168).

To reel this back in:

I think the ironic critique, as just described, is crucial because it calls the contestants in a conflict to be wary that their claims of justice and tolerance can easily transmute into injustice and intolerance without humility and self-examination. That is, their own legitimate moral claims also require them to recognize similar legitimate moral claims on the other side. For example, the recent statement by a group of same-sex-marriage supporters, “Freedom to Marry, Freedom to Dissent: Why We Must Have Both,” argues--in the wake of Brandon Eich etc.--that gay-rights advocates ought to support free speech for their opponents because “[a] culture of free speech created the social space for us to criticize and demolish the arguments against gay marriage and LGBT equality. For us and our advocates to turn against that culture now would be a betrayal of the movement’s deepest and most humane values.” Such arguments, it seems to me, reflect the irony-based critique: it's ironic and wrong, the argument says, for gay-rights supporters to abandon the very values of tolerance and free speech on which the movement rested.

I’ve tried to make challenges like this to both sides in the legal debate over same-sex marriage and religious objectors. The conflict is ironic, I’ve argued in my own work, because even as both sides try to limit each other, they assert claims that have important parallels. (See “What Same-Sex-Marriage and Religious-Freedom Claims Have in Common”; “Protecting Same-Sex-Marriage and Religious Liberty.”) Both sides want to be able to live lives of integrity consistent with what they understand as fundamental features of their identity, free from state interference or discouragement; and both want to be able to do so in civil society (in marriage for the same-sex couple, in charitable or service activity for the religious objector), not just in insular private settings (private living space for the couple, or the church for the objector). It is ironic for each side to deny the strength of the other’s claims, for the contending claims share important features.

I’m not sure that we can develop such critiques or challenges out of a "tragic" approach. What I’ve just described rests on the premise that the conflicting positions are commensurable, in that both appeal to common values at some level—and it challenges each side to recognize those values consistently even when they’re inclined not to do so. But the tragic outlook, as I understand it, denies commensurability and thus prescribes primarily pragmatic resolutions of conflict—indeed, perhaps it can prescribe nothing more. It gives up on commensurability at an earlier stage, and thus, it seems to me, forfeits the chance to challenge the conflicting sides to recognize each other’s interests and claims as a matter of principle rather than merely prudence. Since I think that such principled challenges are important and valuable, it seems to me a loss if we don’t have a solid ground for asserting them.

At some point, as Niebuhr says, conflicting claims cannot be resolved (perhaps not even prudentially), and we are in a tragic situation. I accept that some tough cases concerning religious freedom, and other deeply debated issues, fit that category. Maybe that’s the class of cases Marc is focusing on in his book. But I can’t help but think that leaving out the ironic approach misses opportunities to push the contending sides to a principled recognition of each other’s legitimate claims.

So, questions for Marc: Does the tragic approach provide a ground for raising the kind of challenges I describe? Are those challenges legitimate in some significant range of cases (not just the eas ones)? If they are legitimate, would it be better to recognize the importance of the ironic perspective, or do you think the tragic approach still handles them as well, or somehow better?